Nurse’s Wrongful Termination Based on Facebook Post May Proceed

MELISSA MOORE, a nurse employed by Highlands Hospital Corp. in Kentucky, may pursue a wrongful discharge claim against her former employer based on claims she was fired for posting on her Facebook page complaints about high patient-to-nurse ratios at the hospital where she worked.

Moore filed a lawsuit against Highlands in Kentucky state court, alleging that she was fired in retaliation for exercising her free-speech rights under the Kentucky Constitution. Highlands Hospital removed the lawsuit to the U.S. district court in Kentucky on the basis that Moore’s complaint involved claims for violation of the federal laws, including the National Labor Relations Act, and that these federal laws pre-empted her complaint. Highlands Hospital claimed that Moore’s Facebook postings constituted union activity governed by the NLRA.

The U.S. district court rejected the hospital’s arguments and remanded the case back to state court.

In order to succeed in its arguments, the hospital would have needed to show that the action could have been filed in federal court in the first place. Moore would have needed to have alleged a federal claim or federal law would have needed to pre-empt the nurse’s state law claims. Instead, Moore’s claim was firmly rooted in Kentucky state law without any hint of federal cause of action. Furthermore, neither the NLRA nor the LMRA explicitly pre-empts state law nor is such pre-emption implied. The federal court, therefore, sent the case back to the state court. Moore v. Highlands Hospital Corp., E.D. Ky., No. 7:11-cv-131 (Nov. 17,/2011).

IMPACT: An employee’s complaints about working conditions, even where made public such as on a Facebook post, may be protected by state law and form the grounds for wrongful discharge.